Historical Precedence and Evolution of Fundamental Rights in India

In England, there’s no written constitution and no Bill of Rights. The Fundamental Rights are more negative in the UK, in that a citizen enjoys all the basic human rights, as long as she does not violate any ordinary law of the land. The judiciary protects the legal rights of citizens in the UK, and protects their rights from the tyranny of the Executive. However, the judiciary has no power over the Legislature. The Legislature has full power to thwart any of the rights as it pleases. Hence, the supremacy of Parliament or its “omnipotence” exists in the UK. Therefore, there is no right which can be said to be “fundamental” in the proper sense of the word.

Another vital consequence of the supremacy of the Parliament is that the English Court has no power of judicial review over legislation at all.

In the US, a Bill of Rights guarantees the fundamental rights to citizens. Here, unlike the UK, the makers of the constitution were apprehensive not only with the tyranny of the executive but also the legislature. Therefore, both the executive and the legislative cannot change any features of the fundamental rights there. Hence, while in UK there is “Parliamentary supremacy”, in the US, there lies the “Judicial supremacy”. Only the judiciary is empowered to change the Bill of Rights in face of any emergency or danger to the state.

In India, the Fundamental Rights (Part III) are ensured by the constitution and they are explicitly written down.

The Indian constitution affects a compromise between the judicial supremacy and the Parliamentary sovereignty.

The fact that India has a written constitution and its Parliament is subject to limitations imposed by this written constitution, make it different from the British practice. Additionally, there are provisions enshrined in the constitution of India that enable the judiciary to declare any transgressions of the Parliament as unconstitutional and void.

This is laid out in Article 13(2), which says: “The State shall not make any law which takes away or abridges the rights conferred by the Part and any law in contravention of this clause shall, to the extent of the contravention, be void.”

The American Bill of Rights does not lay down any limitations to fundamental rights within the Bill itself. The limitations are governed by the judiciary for which it has given doctrines such as the Police Power of the State. Unlike that, in India, the constitution lays down various limitations to fundamental rights next to the rights themselves.

Hence, our Constitution follows the American model rather that the English.

However, still Judicial Supremacy weaker than American model because:

Fundamental Rights to Property was made a legal right by the 44th Amendment Act in 1978, hence bringing it under the authority of the Legislature, not the Judiciary.

Introduction of Fundamental Duties by the 42nd Amendment Act in 1976 (Article 51A). Though these are not enforceable in the court, however, a court, in front of which a fundamental right is sought to be enforced, has to read all parts of the Constitution. This means that the court may refuse to enforce the fundamental right at the instance if that individual has patently violated any of the Duties specified in Article 51A. Therefore, the original provision of Fundamental Rights has been effectively minimized.

The American Constitution expressly says that the enumeration of certain rights in the Bill of Rights shall not be construed to deny or disparage others retained by the people. Therefore, it introduces the concept of natural rights that people have regardless of whether mentioned in the Bill of Rights. There is no such provision in the Indian constitution.

This means that Article 32 can be applied only to seek judicial review of Fundamental Rights mentioned in Part III, and this article cannot be applied to other interpretations of “rights” if brought to the court.

Types of Majority

Absolute majority: This means > 50% of total membership of the house (without subtracting vacancies).

Functional majority: This is the simple majority. Censure motions, resolutions passed by HoP for discontinuation of a national emergency need simple majority.

Effective majority: This means > 50% of (total strength of the house – vacancies). This is needed in the removal of speaker, deputy speaker, vice-chairman etc.

Special majority

2/3 members present and voting (no minima requirement). For this majority, RS can pass the following:

Special Power to the RS under this special majority: Art 249: RS can pass a resolution authorizing the parliament to legislate on a state subject for ≤ 1 year. Art 312: RS can pass a resolution authorizing the parliament to create a new all India service.

On a matter of distribution of executive or legislative powers between center and states.

On a matter involving SC and HC.

On a matter involving any list in 7th schedule.

Representation of states in parliament.

Election of president.

Art 368 itself.

Is any part of Constitution unamendable?

Until Golak Nath case, SC held that no part was unamendable. The word ‘law’ in Art 13 referred to ordinary laws made by parliament in its legislative capacity and not constitutional amendment acts made under its constituent capacity.

In Golak Nath case, SC held that constitutional amending power was a legislative power conferred upon the parliament by Art 245. So a constitutional amendment act is also a law under Art 13. This means that FRs can’t be amended by parliament as they have been given a transcendental position under the constitution.

After Golak Nath the parliament sought to supersede it via 24th Constitutional Amendment Act, 1971 by putting in Art 368 that a constitutional amendment act under Art 368 will not be a ‘law’ wrt Art 13.

Validity of 24th constitutional amendment Act was challenged in Kesavananda case where it was held valid. But the doctrine of basic features was propounded.

42nd CA Act, 1976

Judicial review of ordinary laws: For the first time a distinction was made between union laws and state laws for challenging their validity on grounds of unconstitutionality. It was provided that a HC can’t pass judgement on a central law and SC can’t pass judgement on a state law unless a central law had also been questioned in the same proceedings.

Judicial review of constitutional amendment acts: It was provided that a constitutional amendment act will be completely immune from judicial review whether on substantive or procedural grounds. The procedural provision was absurd.

It introduced fundamental duties.

It devalued FRs by expanding the scope of Art 31C to include any law to implement any of the directive.